Legislature(1997 - 1998)
02/07/1997 01:08 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 3 - DISCLOSURES RE FELONY ARRESTS OF MINORS CHAIRMAN JOE GREEN announced the committee would hear House Bill No. 3, "An Act relating to disclosures of information about certain minors." He invited Representative Pete Kott, prime sponsor, to provide comments to the committee. Representatives Jeannette James and Norman Rokeberg arrived. Number 187 REPRESENTATIVE PETE KOTT, prime sponsor of HB 3, advised members it had passed the legislature the previous session as HB 104; however, it was vetoed by the Governor. The reason for his veto was that he wanted to wait for the recommendations of the Juvenile Justice Commission's Task Force. REPRESENTATIVE KOTT pointed out that the proposed legislation would allow public safety agencies the ability to release certain types of information regarding minors who had committed an offense that would be considered a felony offense if committed by an adult. It was perceived that release the information to the public would act as a deterrent to minors who might commit those crimes. REPRESENTATIVE KOTT advised members that a proposed committee substitute had been prepared for member's consideration. REPRESENTATIVE CON BUNDE moved to adopt CSHB 3. Representative Eric Croft objected. REPRESENTATIVE ERIC CROFT asked for an explanation of the differences in the HES committee substitute and the new proposed committee substitute. REPRESENTATIVE KOTT explained that Section 2 of the new committee substitute addressed AS 47.12.320. He stated that it would allow parents to disclose certain information to certain people for review or use in their official capacities. Representative Kott advised members that the proposed committee substitute would also provide that information disclosed to victims could be redisclosed to insurance companies as might be necessary for civil litigation or insurance claims purposes. REPRESENTATIVE KOTT pointed out that the new committee substitute would also provide that anyone who received information, pursuant to Section 2, may not redisclose that information to others not entitled to that information. REPRESENTATIVE CROFT asked if the bill would allow the evidence of the arrest of the juvenile to be used in civil litigation. REPRESENTATIVE KOTT answered that it would, adding that if someone was arrested for a crime and the victim receives the information, the victim could provide the information to his or her insurance company. He pointed out that existing law provides that state or municipal law enforcement agencies may disclose to the public and also may disclose to the victim, information including copies of reports, as necessary, for civil litigation or insurance claims pursued by or against the victim. REPRESENTATIVE CROFT noted that convictions could always be used in a civil trial and asked if the intent of the proposed committee substitute was to allow the use of an arrest as part of the victim's civil case. REPRESENTATIVE KOTT explained that it was his understanding that juvenile delinquency records were sealed, which would prohibit the victim from making claims against the perpetrator. Number 605 REPRESENTATIVE ETHAN BERKOWITZ felt there was a discrepancy between paragraphs one and two on page 2. He noted that it appeared to extend fewer rights to the family of a minor subject, than to a victim, and that the parent would not be entitled to provide information to an insurance company. REPRESENTATIVE BRIAN PORTER stated that paragraph one addressed parents or legal guardians that are not necessarily victims. He explained that that language was from several years ago because of problems parents were having when they had a dispute with the agency that controlled the information and the inability to discuss the problem with their legislator, or anyone else. REPRESENTATIVE BERKOWITZ stated that it appeared as though the victim was entitled to use the information as both a sword and a shield, and the parent was not able to use the information as a shield and felt the language provided a disparity of rights. REPRESENTATIVE PORTER felt that a victim, parent or legal guardian could be added under paragraph two which would alleviate Representative Berkowitz concern. Number 1111 REPRESENTATIVE CROFT advised members his initial concerns had been addressed and he was willing to withdraw his objection in order that the committee have a working document before them. There being no further objection, CSHB 3 was adopted. REPRESENTATIVE CON BUNDE stated with respect to the language of an agency "may" release information, and asked if it would provide a substantial amount of latitude from one jurisdiction to another, and if one agency did not release information and someone else was victimized if the state would somehow be liable because of the failure to release the information. REPRESENTATIVE KOTT agreed that the operative word was "may", and some discretion had been built into the bill that would afford those agencies the opportunity not to release information. REPRESENTATIVE BUNDE was concerned that the various jurisdictions could operate completely different than others and provide the possibility of unequal treatment. REPRESENTATIVE KOTT stated that currently the agencies could disclose information to the public regarding a case as might be necessary to protect the safety of the public. He noted that the proposed committee substitute provides clear direction that the information could be disclosed upon arrest and the agency would not be caught in the dilemma of determining whether or not the public was endangered. REPRESENTATIVE JEANNETTE JAMES was also concerned that the information could be disclosed upon arrest as opposed to a conviction. Number 1415 REPRESENTATIVE CROFT asked how HB 3 and HB 6 were interrelated. It was his understanding that the bills provided two different approaches to the same problem, and both were limited by the concern of losing federal funds to the Division of Family and Youth Services (DFYS). REPRESENTATIVE KOTT explained that the intent of HB 3 was to provide the information to the public prior to it being submitted to DFYS. He noted that once the information is provided to DFYS, it becomes much more privileged and confidential and could not be released. REPRESENTATIVE NORMAN ROKEBERG advised members that a survey had been conducted in his district asking the question of whether a juvenile's names should be made public at the point they commit a crime. Of the 582 responses, 439 responded yes, and 193 responded no, and he felt the people of the state supported the concept of the bill. REPRESENTATIVE KOTT pointed out that the recommendations put forth by the task force were very similar to the proposed legislation and he felt the bill could prevent a juvenile from going from the high chair to the electric chair. GARRY GILLIAM, Detective/Sergeant, Anchorage Police Department, Juvenile Crime Unit advised members the Anchorage Police Department was in support of the concept put forth in HB 3. The mission of the Juvenile Crime Unit was to provide investigative services aimed at controlling juvenile related crimes through identification and apprehension of juvenile suspects in recovering stolen property and assisting with criminal prosecution of defendants charged with assault, burglary, theft and drug related crimes. Sergeant Gilliam advised members the unit also had the additional responsibility of working with the school districts for the purpose of student counseling, intervention programs and criminal investigation and prosecution of juvenile offenders. SERGEANT GILLIAM explained that some of the crimes investigated in 1995 included violent crimes, property crimes, drug offenses and other miscellaneous offenses. He noted that there had been approximately 3700 charges against juvenile offenders and of those offenses 149 involved weapons, approximately 200 drug offenses, 10 arsons, over 400 assaults, over 50 robberies, 23 sexual assaults and 4 charged with either murder, manslaughter or conspiracy to commit murder. SERGEANT GILLIAM advised members that HB 3 would assist the Anchorage Police Department in its function of public safety by providing the opportunity to disclose information to school officials on suspects that had been arrested. REPRESENTATIVE BUNDE asked Sergeant Gilliam to address the term "may" disclose, and the possibility of unequal treatment by the various jurisdictions within the state. SERGEANT GILLIAM advised members that the only information they would release would be a probable cause arrest that indicated that the individual was responsible for the crime, and if there was a reason to protect the school district or the public safety. The Anchorage Police Department was comfortable with the use of the term "may" versus "shall". CHAIRMAN GREEN asked Sergeant Gilliam to address the language on page 1, line 11, and asked if that would mean may have committed prior to being adjudicated. SERGEANT GILLIAM read that to mean that there was a probable cause arrest at the time the juvenile was detained. Number 1833 REPRESENTATIVE BERKOWITZ asked if the police department generally had information regarding a juvenile's arrest history. SERGEANT GILLIAM advised members that some information was difficult to retrieve regarding juvenile arrest histories. He pointed out that juveniles were adjudicated as delinquent rather than convicted, and that information was sealed and inaccessible. Number 1950 LAURA ROREM, speaking on her own behalf, advised members that she was the parent of two adopted children, now ages 21 and 24, who had both suffered from brain disorders since birth. She pointed out that she was also a member of the Alaska Mental Health Board. MS. ROREM explained that neurobiological disorders, such as mental illness and organic brain disorders, such as fetal alcohol syndrome were diseases that affect behavior, thought processes, mood, judgement, reason and the ability to make a decision. She noted that those illness were not caused by a bad environment, abuse or neglect, adding that those diseases were grossly misunderstood and treatment was sporadic, difficult to access and blame-oriented. MS. ROREM advised members that in seeking help for her children, they, as parents, were repeatedly told a crime would have to be committed prior to receiving help. Ms. Rorem stated that at age 15, one of the boys was arrested for felony assault and when they approached the Johnson Youth Center, the authorities blamed the parents for his behavior and resulting arrest. MS. ROREM stated that publishing the parents' names and the name of the child would not have served as a deterrent in their case, nor would it have brought appropriate intervention or treatment. Ms. Rorem explained that there was a universal fear among parents of children with brain disorders that the prison system and court system would become the treatment their child receives, rather than appropriate treatment and intervention. Number 2242 REPRESENTATIVE CROFT asked what effect the proposed legislation would have on the willingness of people to become foster parents if disclosure of the parent's names was allowed. MS. ROREM felt it would be very scary for either foster parents or adoptive parents because they would be looked upon as being bad parents. REPRESENTATIVE PORTER pointed out that the bill provided the opportunity, rather than the requirement, for a police department to make certain information public. He asked Ms. Rorem if she felt the Juneau Police Department would make public information directly related to her situation. Ms. Rorem felt it would depend on who the arresting officer was. REPRESENTATIVE PORTER's response was that he did not feel the arresting officer would have that option, that it would be a policy dictated by the Chief of Police. MS. ROREM felt the information could be released by the officer. TAPE 97-10, SIDE B Number 000 ROBIN LOWN, Vice President, Alaska Peace Officer's Association, advised members that based on the Association's review of HB 3, they were in support of the proposed legislation. It was felt that minors who committed offenses that would be felonies if committed by an adult should not be afforded disclosure protection. Mr. Lown noted that the original bill, HB 3, proposes that disclosure be made upon the arrest of a juvenile and it was his suggestion that the language also include "charged" with a crime. He explained that often times there are juveniles that the police department know committed an offense; however, they were unable to locate the individual. Mr. Lown stated that they could charge the juvenile without having him or her in actual custody and that it would be to the public's benefit to be able to release that information. REPRESENTATIVE BERKOWITZ asked if it would be correct to say that the decision to charge an individual with a felony or a misdemeanor would fall beyond the arresting officer's purview. MR. LOWN responded that usually when a felony charge was levied, the prosecuting authorities would be contacted in advance and they give the permission to charge a felony crime. He noted that it was generally not the case where the officer, on the street, would make that decision. REPRESENTATIVE BERKOWITZ asked whether the Department of Law should be involved as to whether an individual's name should be released. MR. LOWN advised members that the department would be doing that by the fact of reviewing a case prior to it being charged, or an arrest was made. He expressed that the district attorney's office would be contacted and advised of the circumstances and the probable cause, and they would decide what to charge the individual with. REPRESENTATIVE BUNDE posed the question to Mr. Lown regarding how the various jurisdictions would respond to the release of information. MR. LOWN felt each jurisdiction would react somewhat differently to the disclosure of information; however, his personal opinion was that if a juvenile committed a felony that his name should be made public. Number 790 MARGOT KNUTH, Assistant Attorney General, Department of Law, spoke on behalf of the Governor's Children's Cabinet which consisted of the Commissioner of Public Safety, Attorney General Commissioner of Health and Social Services, Commissioner of Community and Regional Affairs and the Commissioner of the Department of Education. She noted that all commissioners had been concerned with the problem of juvenile crime and what the state could do to turn the situation around. MS. KNUTH pointed out that Governor Knowles appointed his Conference on Youth and Justice the previous year with Representatives Porter and Kelly being active members of that conference. She explained that it was specifically designed to be a bipartisan undertaking to propose constructive solutions for individuals, communities and the state on how to address juvenile crime. MS. KNUTH advised members that HB 3 was the same as last year's legislation, HB 104, which Governor Knowles vetoed because of his concern that the disclosure was from the moment of charge, rather than sometime later in the proceedings. She pointed out that when the bill was vetoed, Governor Knowles indicated that while he did believe it was appropriate to disclose certain types of information about juveniles who commit crimes he felt the proposed approach was flawed. At that time he indicated his intent to appoint a Conference on Youth and Justice. MS. KNUTH advised members that the Conference on Youth and Justice did arrive at a proposal which was currently embodied in the Governor's bill, HB 97. She expressed that HB 97 would provide for disclosure of information from the moment a petition for adjudication of delinquency was filed with the court. Ms. Knuth pointed out that there were more cases of mistaken identity with youths in arrest situations than with adults. MS. KNUTH advised members that most arrests, in felony cases, were made before an attorney had an opportunity to review the circumstances. She noted that by using the language "when a petition is filed" the bill would provide an extra level of assurance that the change was, indeed, appropriate. MS. KNUTH advised members that the position of the administration was that the public had a right to know when juveniles had committed serious and violent offenses and pose a risk to the public. She noted that the term "felony" was a broad brush that included offenses that did not present the same type of danger that other felony offenses did. Of particular concern were crimes of violence and crimes against persons. The Governor's proposal, along with the Conference's recommendation to the Governor, was that the public should be allowed access to information regarding felony crimes a youth commits against a person from the moment a petition is filed. MS. KNUTH pointed out that children are able to change much more rapidly than adults. She felt that was the main reason that extra protection is afforded children in the criminal system. Ms. Knuth stated that one of the main factors a parole board considers when contemplating release of an offender on discretionary parole was the age of the individual when they committed the offense. She advised members that a great number of the state's juvenile offenders who are referred to Health and Social Services, go on to become law abiding citizens of tomorrow. Ms. Knuth noted that she was concerned that one could actually be promoting "high chair to the electric chair" if inappropriate public disclosure should take place. MS. KNUTH felt one necessary component of a successful formula would be to provide for appropriate intervention at the local level in particular. She noted that one of the most exciting recommendations that came out of the Governor's Conference was that the state should enable local communities to respond to the lower level juvenile offenses. Ms. Knuth advised members that in the communities they visited throughout the state, there was the recognition that Health and Social Services was not doing what needed to be done with the troubled youth in the state. This was because their resources were quite restricted because of a decreasing budget. As a result, department expends their energies into the most serious offenses, which comes down to putting the most work into the fewest number of cases. MS. KNUTH advised members that the Conference recommended that communities be given the ability to respond to the low level offenders, and the communities responded enthusiastically to that concept. Ms. Knuth noted that the vehicle of choice in Anchorage was to come up with a hearing officer system, whereby, in exchange for not going through Health and Social Services formal delinquency proceedings, the child would agree to have the case heard before the hearing officer. That process would not result in a criminal record, although a record would be provided Health and Social Services, but would result in restitution to the victim and restoration to damaged property, et cetera. She felt that process would provide a good deterrent. Ms. Knuth pointed out that the smaller communities wanted to use a community court system where the elders of the community would be the authority figures who would require an accounting. MS. KNUTH advised members that the Children's Cabinet and the administration did not have an issue with the portions of the bill relating to disclosures to insurance companies. However, they did feel the discretionary law enforcement disclosure to the public needed more fine tuning. REPRESENTATIVE PORTER advised members that to his knowledge, the district attorney's policy in Anchorage was if an apprehension were anticipated in an investigation, that a discussion on the elements that existed and the appropriateness of the charge would occur prior to the apprehension. He noted that the only circumstance that they would allow would be that an arrest had been made and a crime in progress when the arrest was necessary for the immediate confiscation of evidence that would otherwise be lost. Representative Porter asked if that practice had changed. MS. KNUTH expected that an arrest was handled differently in different areas of the state. She pointed out that in Juneau the only occasions on which the district attorney's office would review a felony case and say, go ahead and make an arrest, was if it had been an ongoing investigation. Number 1955 REPRESENTATIVE JEANNETTE JAMES expressed that over the past few years teachers had testified before the committee regarding the ability to identify children who seem to have a potential for mental or behavior problems. She asked Ms. Knuth if she was aware of any solution to early intervention in those types of cases. MS. KNUTH felt that the focus was finally becoming that of early intervention through community involvement and various programs. She advised members that it had been unsuccessful to wait until the state had probable cause to file a petition for delinquency on those juveniles. Ms. Knuth pointed out that one of the more exciting recommendations, that did not require legislation, was the creation of what is called Community Justice Action Teams. These groups would include police, prosecuting authorities, educators, social workers and concerned citizens to specifically target kids who were at risk of becoming serious chronic offenders. The team would observe those juveniles and attempt to dispel the sense of skating. REPRESENTATIVE JAMES stated that she was concerned with the safety of the public and their right to know of a potential danger. She questioned the means of authorizing disclosures for those cases that needed to be disclosed without using extreme discretion, and if there was language that would be binding enough to withstand a challenge. MS. KNUTH advised members that the recommendation of the Governor's Conference was to have disclosure take place when a petition was filed for felonies that were crimes against a person. Ms. Knuth stated that the problem with that recommendation was that petitions were not filed in most cases, adding that approximately 75 percent of those cases were adjusted prior to a petition being filed. She noted that within the 75 percent group, there would be some serious offenders, or at risk of becoming serious offenders. TAPE 97-11, SIDE A Number 000 MS. KNUTH pointed out the need to have more disclosures to schools and especially to teachers. She felt that was an area that could be tailored to say, "the department (DHSS) shall disclose;" and that would include disclosure to the principal and the teacher in the classroom of a child's particular behavior. Another proposal was to make sure that the law enforcement agencies had as much information about juveniles as possible. Ms. Knuth advised members that one of the items they expect to see in the capital budget was funds that would provide for computer hardware to link Health and Social Services juvenile computer records with law enforcement agencies' computer systems. REPRESENTATIVE BUNDE asked what types of felonies Ms. Knuth felt should not be included in the disclosure process. MS. KNUTH suggested that Class C drug felonies not be included because the possession of any quantity of marijuana found on the school grounds was an automatic felony. She pointed out that often times that was an isolated incident and one in which the Department of Health and Social Services had had a great deal of success in working with the child and the family. Ms. Knuth stated that one of the concerns the department had expressed with making those juvenile records public, was how it would affect the child's chance of employment when they get out of school. Ms. Knuth stated that criminal mischief and theft offenses were felonies at the $500 level, noting that in this day and age, a broken window would cost that or more, and those were crimes that would not put a person's well-being at risk. REPRESENTATIVE BUNDE posed the question as to how the different jurisdictions would apply the law. MS. KNUTH stated that it was a legitimate concern that each law enforcement agency would interpret the law differently. She felt there would be departments that chose to have no disclosure, and departments that would choose to have disclosure in all instances. Ms. Knuth added that some departments would decide that all parents should be named, with another deciding never to disclose the parent's names. Ms. Knuth pointed out that there had been no studies conducted in the United States that reveal the results of public disclosure. CHAIRMAN GREEN announced that HB 6 would be brought before the committee on Monday, February 10th, because of the lack of time to address it during this meeting. BARBARA BRINK, Acting Director, Public Defender Agency, Department of Administration, agreed with most of the testimony provided by Ms. Knuth. She felt the proposed legislation could induce some unintended consequences through the release of information to the general public. Ms. Brink urged the committee to consider not releasing information at the time of arrest, or even at the point of filing a petition. She expressed that if the child and his or her family were allowed to be stigmatized by providing information to the public, in general, would damage that family prior to knowing if the juvenile committed a crime. Ms. Brink noted that innocent people did get arrested and innocent people were often forced to go to trial and it would not be until the case was acquitted that the truth is made known. Ms. Brink also referenced the adverse psychologic effect a false disclosure could have on the child and his/her family. MS. BRINK pointed out that Alaska's juvenile crime rate was rated 37th in the nation, i.e., lower than most states in the United States. However, she expressed that Alaska was rated second in the nation in locking juveniles up and the length of time they are locked up. Ms. Brink noted that a study conducted on the McLaughlin Youth Center and the programs provided there resulted in a 50 percent success rate, which was unusually high nation-wide. MS. BRINK stated that the reason the bill was initially filed was because of a problem with the Division of Family and Youth Services jeopardizing millions of dollars in federal funds because juvenile delinquents and children in need of aid were both handled within the one division. She pointed out that if there was a disclosure at the agency level, it would have jeopardized those federal funds and the proposal was a means of not putting those federal funds at risk. Ms. Knuth advised members that the department was moving forward with plans to further subdivide the children in need of aid cases from the juvenile delinquent cases. ANGELA SALERNO, Executive Director, National Association of Social Workers, agreed with most of the testimony provided by Ms. Knuth and Ms. Brink. She expressed that the juvenile justice system, as known presently, was the result of reform. Ms. Salerno stated that during the last century, prior to having a juvenile court, juveniles had been treated as if they were adults when they committed crimes. She pointed out that the American public decided, at that time, that it was unacceptable and inappropriate to treat children as adults. The realization came about that those children were being lost when they could very well have been rehabilitated. MS. SALERNO pointed out that the state presently had a very good system in place which provided for intervention, treatment, punishment and accountability, adding that Alaska was very tough on juvenile criminals. She reiterated that Alaska was number two in the nation for locking up kids, and also number two in the nation for the length of time those kids are kept in detention. MS. SALERNO stated that because of the confidentiality afforded kids in the state, she felt there was a misperception in the community that nothing happens when juveniles offend. She expressed that the state had very strict and swift consequences in the state, adding that juvenile waiver existed in the state now where those juveniles who had committed serious crimes were automatically treated as adults. Ms. Salerno advised members that many juvenile cases had been waived to adult courts in the state of Alaska. MS. SALERNO did not disagree that there was a need for public safety; however, her concern was how effective the disclosures would be and what the public would do with the information once they received it. She felt the proposed legislation would create a greater fear in the community and almost ensures that the families facing the crisis in question, already struggling on the brink, could be pushed a little closer to real disintegration. MS. SALERNO advised members that she had searched for data relating to the concept of the proposed legislation and was not able to find any. She expressed that it was a new idea with no data to back it up and felt it was being done in desperation. MS. SALERNO pointed out that the National Association of Social Workers was in support of prevention, and asked that members consider the issue dispassionately and attempt to decide it on its merits. Number 1765 REPRESENTATIVE JAMES expressed her understanding of Ms. Salerno's passion on the issue; however, she stated that her analogy to the whole situation with children was that it was kind of like parenting. She pointed out that the public was concerned about the issue and was seeking a solution which meant it was necessary to do something. Representative James asked if Ms. Salerno had any suggestions on how the legislature should address the issue. MS. SALERNO agreed that danger did conceivably exist and it was the people's right to know for public safety reasons. However, she did not feel the community was presently equipped to deal with the issue in a constructive and productive manner. Ms. Salerno expressed her belief in the ability of all people to change and grow.
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